A. Selection of the Monitor
79. The DOJ and the City shall select a Monitor with corrections experience, a reputation for integrity and an absence of bias, including any appearance of bias, for or against the DOJ, the City or the DPD, who shall review and report on the City and the DPD's implementation of this Agreement:
a. If the DOJ and the City have not agreed upon a Monitor prior to the effective date of this Agreement, then within 60 days of the effective date of this Agreement, the DOJ, together with the City, jointly shall issue a solicitation for bid proposals for appointment as the Monitor. In addition to a targeted national mailing, the solicitation shall be published in several national newspapers, and the web sites of the City and the DOJ. The City shall bear the cost of publicizing the solicitation.
b. The deadline for the submission of such proposals shall
be 30 days after publication of the solicitation on the City's website.
c. All proposals for appointment as the Monitor under this provision shall include plans for experts to be utilized, resumes and curriculum vitae of proposed experts, cost proposals and any other information that
the City and the DOJ deem necessary.
80. The DOJ, the City and the DPD have resolved the DOJ’s claims regarding the use of force and arrest and witness detention policies and practices in a separately filed Agreement. That Agreement also requires the selection of a Monitor to review and report on the City and the DPD's implementation of that Agreement. The parties recognize that one person,
or team of people, may be selected to fulfill both monitoring roles or that separate Monitors may be selected. If separate Monitors are selected, the Monitors shall confer and coordinate their efforts on issues that overlap both
Agreements.
81. If the City and the DOJ are unable to agree on a Monitor prior to or within 180 days of the effective date of this Agreement, the City and the DOJ shall submit two names of persons or teams of people with corrections experience, a reputation for integrity and an absence of bias, including
any appearance of bias, for or against the DOJ, the City or the DPD, along with resumes or curriculum vitae and cost proposals, to the Court, and the Court shall appoint the Monitor from among the names of qualified persons submitted.
82. In the interest of expediting the selection and contracting processes for the Monitor, the City and the DOJ shall be exempt from local contracting procurement regulations and all such regulations shall be considered waived for this purpose.
83. The Monitor, at any time after the initial selection of the person or team of persons as the Monitor, may request to be allowed to hire or employ such additional persons or entities as are reasonably necessary to perform the tasks assigned to him or her by this Agreement. Any person or entity hired or otherwise retained by the Monitor to assist in furthering any provisions of this Agreement shall be subject to the provisions of paragraphs 90, 91 and 99, governing testifying, conflicting employment and confidentiality. The Monitor shall notify the City and the DOJ in writing if the Monitor wishes to select such additional persons or entities. The notice shall identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the City and the DOJ agree to the Monitor's proposal, the Monitor shall be authorized to hire or employ
such additional persons or entities. The City or the DOJ have ten days to disagree with the proposal. If the City and the DOJ are unable to reach agreement within ten days of receiving notice of the disagreement, the Court shall resolve the dispute.
84. The City shall bear all reasonable fees and costs of the Monitor and any persons hired or employed pursuant to paragraph 83. The Court retains the authority to resolve any dispute that may arise regarding the reasonableness of fees and costs charged by the Monitor. In selecting the
Monitor, the City and the DOJ recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly, fees and costs shall be one factor considered in selecting the Monitor. In the event
that any dispute arises regarding the payment of the Monitor's fees and costs, the City, the DOJ, and the Monitor shall attempt to resolve such disputes cooperatively. If the City, the DOJ and the Monitor are unable to reach agreement, the Court shall resolve the dispute.
85. The Monitor shall not be subject to dismissal except by the Court upon motion of the City or the DOJ and a showing of good cause.
B. Duties of the Monitor
86. The Monitor shall be an agent of the Court and shall be subject to the supervision and orders of this Court, consistent with this Agreement. The Monitor shall only have the duties, responsibilities and authority conferred by this Agreement. The Monitor shall not, and is not intended to,
replace or take over the role and duties of any City or DPD employee. The Monitor may not modify, amend, diminish or expand this Agreement.
87. The Monitor shall offer the parties technical assistance regarding compliance with this Agreement. Technical assistance shall be provided to a party upon request and it shall be offered consistent with the provisions of this Agreement. In monitoring the implementation of this Agreement, the Monitor shall maintain regular contact with the parties.
88. In order to monitor and report on the City and the DPD's implementation of each substantive provision of this Agreement, the Monitor shall conduct the compliance reviews specified in paragraph 93 of this Agreement and such additional reviews as the Monitor deems appropriate. The Monitor may make recommendations to the parties regarding measures necessary to ensure full and timely implementation
of this Agreement.
89. To assist the parties and the Court in assessing the City and the DPD’s implementation of each substantive provision of this Agreement, the Monitor shall prepare the reports specified in paragraph 97 of this Agreement and such additional reports as the Monitor deems appropriate.
90. The Monitor may testify in this case regarding any matter relating to the implementation, enforcement, or dissolution of this Agreement. The Monitor shall not testify in any other litigation or proceeding with regard to any act or omission of the City, the DPD, or any of their agents, representatives, or employees related to this Agreement or regarding any matter or subject that the Monitor may have received knowledge of as a result of his or her performance under this Agreement. The Monitor shall not issue statements or make findings with regard to any act or omission of the City, the DPD, or their agents or representatives, except as required by the provisions of this Agreement.
91. Unless such conflict is waived by the parties, the Monitor shall not accept employment or provide consulting services that would present a conflict of interest with the Monitor's responsibilities under this Agreement and for five years following the termination of this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or claimant's attorney, in connection with a claim or suit against the City or the DOJ or their components, officers,
agents or employees.
92. Neither the Monitor nor any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement shall be liable for any claim, lawsuit, or demand arising out of the Monitor's performance pursuant to this Agreement. Provided, however,
that this paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement.
C. Compliance Reviews
93. In order to monitor and report on the City and the DPD's implementation of this Agreement, the Monitor, shall, inter alia, regularly conduct compliance reviews to ensure that the City and the DPD have implemented and continue to implement all measures required by this Agreement. The Monitor shall, where appropriate, employ sampling techniques to measure compliance.
94. Subject to the limitations set forth in this paragraph, the DPD shall reopen for further investigation any investigation the Monitor determines to be incomplete. The Monitor shall provide written instructions for completing any investigation determined to be incomplete. The Monitor
shall exercise this authority so that any directive to reopen an investigation is given within a reasonable period following the investigation's conclusion. The Monitor may not exercise this authority concerning any investigation the disposition of which has been officially communicated to the officer who is the subject of the investigation.
95. The parties agree that the DPD shall hire and retain, or reassign a current DPD employee, for the duration of this Agreement, to serve as a full-time DPD Compliance Coordinator. The Compliance Coordinator shall serve as a liaison between the DPD, the Monitor and the DOJ, and shall assist with the DPD's compliance with this Agreement. The DPD shall select an individual with sufficient rank to mandate that tasks related to compliance are completed in a timely manner. At a minimum, the Compliance Coordinator shall: coordinate the DPD's compliance and implementation
activities; facilitate the provision of data, documents and other access to DPD employees and material to the Monitor and the DOJ as needed; ensure that all documents and records are maintained as provided in this Agreement; and assist in assigning compliance tasks to DPD personnel, as directed by the Chief of Police or his or her designee. The DPD Compliance Coordinator shall take primary responsibility for the routine collection of information the Monitor requires to carry out the provisions of this Agreement.
D. Reports and Records
96. Within 120 days from the effective date of this Agreement, and every three months thereafter until this Agreement is terminated, the City shall file with the Monitor and the DOJ a status report, including any supporting documentation, delineating all steps taken during the reporting period to
comply with each substantive provision of this Agreement.
97. The Monitor shall file with the Court quarterly public reports detailing the City's compliance with and implementation of this Agreement. The Monitor may issue reports more frequently if the Monitor determines it
appropriate to do so. These reports shall not include information specifically identifying any individual officer. Drafts of all status reports shall be provided to the DOJ and the City at least 10 days prior to publication to afford the parties an opportunity to identify factual errors.
98. During the term of this Agreement, and subject to record retention requirements and procedures imposed by state or local law, the City and the DPD shall maintain all records documenting compliance with this Agreement and all documents required by or developed pursuant to this Agreement. The City and the DPD shall maintain an officer's training
records during the officer's employment with the DPD and for three years thereafter.
99. The City and the DPD shall provide the Monitor and the DOJ with full and unrestricted access to all DPD and City staff, facilities, and documents (including databases) that are relevant to evaluate compliance with this Agreement, except any documents protected by the attorney-client privilege and/or work product doctrine. Should the City decline to provide the Monitor or the DOJ with access to a document based on attorney-client privilege and/or the work product doctrine, the City shall provide the Monitor and the DOJ with a log describing the document. The Monitor and the DOJ shall retain any non-public information in a confidential manner and shall not disclose any non-public information to any person or entity, other than a party or the Monitor, absent written notice to the City and either written consent by the City or a court order authorizing disclosure. This Agreement does not authorize, nor shall it be construed to authorize, access to any DPD documents by persons or entities other than the DOJ, the City, and the Monitor.